Friday, December 17, 2010

Natural law, theology and good government.

It is sometimes claimed that “natural law” theory is inherently Christian. This simply is not correct, though it is true that Christians, especially Thomistic Catholics, later adopted some aspect of natural law theory. In his work, Natural Law, A.P. d’Entréves said that: “The Thomistic interpretation of Christianity is unthinkable without the notion of natural law.” But natural law originated in Greek culture. According to d’Entréves, the theologian E. Troeltsch, wrote that natural law was “an alien element in Christianity” and represented “the inheritance of the ancient world which could be adapted to Christian teaching.”

Prof. Paul Conkin, in Self-Evident Truths, writes: “Natural-law theories originated in Greek philosophy. Plato and Aristotle affirmed not only a formal logical order in the world but an inherent purposefulness in all things. Nature stood for both the order and the purpose. Aristotle’s universe was one vast congeries of yearnings, of informed objects moving toward their own perfection and, in a sense, trying to imitate the objects above them in a chain of being stretching to a perfect mind which pulls all things toward it. Man, by his intellect, can grasp the formal truth in objects, can understand the structure of the universe. More importantly he can understand himself, grasp his own nature, which is also to perceive his own highest good.”

The natural law of the Greeks, and America’s Founders, was one grasped and understood through the use of reason, not faith. The appeals to the God of nature, or to God’s laws, must be understood in this non Christian tradition. While many of the Greeks were theistic, they were certainly not Christian. Natural law theory did not necessarily rely on a divine being. Conkin says: “For Aristotle, lawfulness and purpose inhered in a reality that was, itself, eternal and in no sense the product of creative intelligence.” The Jesuit philosopher Thomas E. Davitt noted: “If the word ‘natural’ means anything at all, it refers to the nature of a man, and when used with ‘law’, ‘natural’ must refer to an ordering that is manifested in the inclinations of a man’s nature and to nothing else. Hence, taken in itself, there is nothing religious or theological in the ‘Natural Law’ of Aquinas.” The Protestant jurist Hugo Grotius defended the concept of natural law, in his De Iure Belli ac Pacis, where he said such natural law theories “would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God....” D’Entréves makes an interesting point regarding the position of Grotius:

When he maintains that natural law is that body of rules which man is able to discover by the use of his reason, he does nothing but restate the Scholastic notion of a rational foundation of ethics. Indeed, his aim is rather to restore the notion which had been shaken by the extreme Augustinianism of certain Protestant currents of thought. When he declares that those rules are valid in themselves, independently of the fact that God willed them, he repeats an assertion which had already been made by some of the Schoolmen...

Grotius felt that natural law did not depend on theology, or the existence of God. It was independent of any deity. In fact, it was, in a very real sense, superior to God. He wrote: “Just as even God cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil.” Grotius realized that theology was losing its hold on humanity and he saw no reason that natural law should be the baby thrown out with the bath water. D’Entréves says that Grotius took this idea further than anyone else before him, but that his “successors completed the task”. He wrote: “The natural law which they elaborated was entirely ‘secular.’ They sharply divided what the Schoolmen had taken great pains to reconcile.” He notes that all the great treatises on natural law of the seventeenth and eighteenth centuries have “nothing to do with theology”. In reality the idea of the “self-evidence of natural law has made the existence of God perfectly superfluous.” Thus natural law theory did not originate with Christianity. It was explained, first by the Greek philosophers and then grafted onto Christianity by Aquinas and his followers. Later Grotius, and those who followed him, divorced theology from natural law and returned the concept to its original, non Christian state.

Protestantism was founded in opposition to this view of natural law. If Grotius argued that not even God could make two plus two equal five, the Reformationist argued that two plus two didn’t equal five only because it was God’s will that it equal four. A completely sovereign God could change his mind, and could make two plus two equal five, if he so wished. Today this view is most clearly held by radical Islamists, but the Reformationists were keen advocates of it as well. Under this theory there is no such thing as right or wrong except as decreed by God. For this reason many of the hard-Right Calvinists of today argue that human rights are themselves a fiction. They will state quite openly that murder is only wrong when God says it is and not wrong when God commands it. There is no eternal morality—only the will of God.

Such logic makes knowledge itself impossible and reason impotent. Even if man were to attempt to understand this world rationally the divine will could change it. Beiser notes that for the Protestant reformationist “natural law is not an eternal norm binding upon God himself, nor is it a necessary form or part of the divine nature. Rather, it is still only a contingent decree, depending upon the divine choice and will alone. In other words, the law of nature has a strictly hypothetical validity; it is valid for this world only if God chooses to create it; but God does not stand under any prior obligation or necessity to do so. He is free to create a completely different universe, which would have completely different natural laws. Furthermore, once he has created this world, he is still free to destroy it and to create a new one, and his decision to do so is ipso facto good.”

The Greek tradition, not the Judeo-Christian one, is the birthplace of natural law theory. Barbara Ward, in her Faith and Freedom, does a fairly good job of outlining Greek concepts of natural law. She says that the “Greek philosophers were the first people to think systematically about these problems of knowledge—of the knower and the known—and it led them to their belief in the supremacy of reason.” For the Greeks “order in man’s knowledge called for a comparable order in external reality. A rational mind could hardly make sense of an irrational universe.” This meant that the external world was one that contained rational laws which could be discovered by reason. This did more than change how man perceived “facts of nature” or science but also how man related to man.

Ward wrote, “this sense of rationality and law permeated all Greek thinking” and “lies at the basis of Greek political thought.” Prior to the Greeks, says Ward, “government had been arbitrary.” These “archaic societies...developed from primitive religion and magic” “government was universally despotic, a private matter for king or priest, arbitrary, unpredictable....” But “despotism was anathema to the Greeks” because it “denies objective and intelligible law. The whim of an autocrat of whatever kind exposes a man to irrational and unpredictable hazards.” “Only if government conforms to law... can the citizen be said to be free.” Ward says that America’s founding fathers were directly influenced by this Greek view.

She wrote: “The country gentlemen of Virginia were versed in the classical tradition and derived from it their sense of law. Some of the leading spirits in the drafting of the Declaration of Independence were keen students of the idea of natural law, which was in part a harking back to the ancient tradition of the Greeks, to the idea of dike—eternal law—lying at the foundation of the universe.” Ward is not an advocate of reason but an opponent, but she is correct when she wrote that the concept of natural law is wholly non-Christian in origin.

F.A Hayek, in his Constitution of Liberty, traces the very concept of the rule of law to the Greeks as well. But such should be expected. If the Greeks advocated natural law they would also advocate the rule of such law. This is what Aristotle meant when he said “it is more proper that the law should govern than any of the citizens.” Hayek says that Aristotle “condemns the kind of government in which ‘the people govern and not the law’ and in which ‘everything is determined by majority vote and not by law.” Hayek went to great lengths, especially in his three volume work, Law, Legislation and Liberty, to distinguish between law and legislation. Law, in the Greek sense, is natural and like other facts of nature is discovered while legislation is merely imposed. Hayek said that all schools of natural law agree on “the existence of rules which are not of the deliberate making of any lawgiver.” It was to this concept that the Founding Fathers appealed in their Declaration of Independence. They felt that the British government had violated such natural laws.

The early Christians had no such concept as natural law but were instead believers in supernatural law. They were still closely tied to Jewish concepts they denied the Aristotelian view. As Conkin says: “The Jews perceived their law, not as inherent in nature and open to right reason, but as the direct command of Jehovah.” Aristotle’s basic philosophy was eclipsed by the more traditional, faith-driven beliefs of Christianity. The great Catholic philosopher Thomas Aquinas brought Aristotle back into the light. He attempted to merge Aristotelian logic with Christian faith. This reborn respect for reason, natural laws, and an orderly universe served as the foundation for the Renaissance and the Age of Enlightenment. Aquinas said that faith and reason lead to the same point. Whether or not this is true is not particularly important for us. What Aquinas did accomplish was grant Western man the right to use reason once again. Philosopher Leonard Peikoff writes:

What—or who—ended the Middle Ages? My answer is: Thomas Aquinas, who introduced Aristotle, and thereby reason, into medieval culture. In the thirteenth century, for the first time in a millennium, Aquinas reasserted in the West the basic pagan approach. Reason, he said in opposition to Augustine, does not rest on faith; it is a self-contained, natural faculty, which works on sense experience. Its essential task is not to clarify revelation, but rather, as Aristotle had said, to gain knowledge of this world. Men, Aquinas declared forthrightly, must use and obey reason; whatever one can prove by reason and logic, he said, is true. Aquinas himself taught that faith is valuable as a supplement to reason. But this did not alter the nature of his revolution. His was the charter of liberty, the moral and philosophical sanction which the West desperately needed. His message to mankind, after the long ordeal of faith, was in effect: “It is all right. You don’t have to stifle your mind anymore. You can think.”

Peikoff says this lead to a chain of events. First was the revolt against the authority of the church, then the break-up of feudalism and then the Renaissance. Man’s views of the world changed leading to the Age of Reason and this “was the age in which America’s founding fathers were educated and in which they created the United States.” He concludes: “The Enlightenment represented the triumph (for a short while anyway) of the pagan Greek, and specifically of the Aristotelian spirit. Its basic principle was respect for man’’s intellect and, correspondingly, the wholesale dismissal of faith and revelation.”

Father Frederick Copelston, in his book Aquinas, said that Aquinas “shared with Aristotle the view that it is the possession of reason which distinguished man from the animals.” Aquinas then said that through reason man discovers the moral good or as Copelston put it “there is therefore room for the concept of ‘right reason’, reason directing man’s acts to the attainment of the objective good for man.” Or to put it another way: “If it is said that moral conduct is rational conduct, what is meant is that it is conduct in accordance with right reason, reason apprehending the objective good for man and dictating the means to its attainment.” A “higher law” discovered through “right reason” is not uniquely Christian. Cicero, who, like his fellow Romans, borrowed natural law concepts from the Greeks, wrote of it in his De Republica. He wrote:

True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions... It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it.

Aquinas took a philosophy originated by secular pagans and grafted it onto Christian thinking. In so doing he removed the stigma from Aristotle, and from the advocacy of reason. Traditional Christianity saw man, and the world, as fallen. Nothing good could come from worldly thinking. The great Roman system of justice, based on Greek natural law theory, could not be considered worthy of emulation. It too was the result of sinful men. Traditional Christianity was a pessimistic theory. As d’Entréves points out, when natural law was grafted onto Christian theology the change was quite revolutionary. Pessimism changed to optimism. Christianity “ceased to be hostile to the world.” Once Roman law was respected it was recognized that “the greatest of all legal systems had been based purely on reason and utility.” “How could the teachings of Aristotle, the pagan philosopher, be adapted to the Christian view of life?” d’Entréves wrote. “If so great a body of wisdom had been discovered without supernatural help, if a basis was to be provided for human relationships independently of the higher requirements of Christian perfection, surely there must be a knowledge of ethical values which man can attain with the sole help of his reason.” Aquinas, quite unintentionally, undermined the very faith he was hoping to justify.

Once reason was loosed the inevitable happened. As reason rose, faith waned. The Founding Fathers were historically positioned between the last great age of religion and the modern, rational world. As such they tried to accommodate the two conflicting systems. This they did by denying Christianity the bulk of its supernatural claims. They detheologized it and tried to see it in scientific, rationalist terms. The modern Christians, from the Reformation onwards, tried to merge faith and reason, God’s law and natural law. This they did by saying that natural law is God’s law. Conkin says: “By a later, Greek-inspired Christian view, a divine and benevolent creator implanted at least part of His law in the created world and bestowed on man the intellectual faculties necessary to apprehend this inherent law, thus making it available to all mankind and not exclusively available to recipients of a special and direct revelation.”

The Enlightenment was a return to the Greek concepts of natural law and a repudiation of the supernatural law beliefs of the various sects of theists. Prof. J. Salwyn Schapiro in Liberalism: Its Meaning and History notes that classical liberal, Enlightenment thinking rediscovered nature and accepted a “world governed beneficently by impersonal natural law.” Governments were judged according to the concept of natural law and those that did not live up to its standards were to be abolished and replaced by new forms of rule that did. “In human affairs, as in those of nature, there existed natural laws that could be discovered by the scientific method of investigation.” Since such laws where natural they required a natural method of investigation: reason. Where God’s revealed law required revelation natural law required reason. Schapiro said: “Reason, not faith as formerly, was regarded as the only true instrument to guide man on his new voyage of discovery.”

The early church father Augustine, was a rabid hater of reality and this world. He also despised man’s mind. For Augustine the only legitimate tool for discovering man’s nature and moral law was faith. Aquinas rebelled against the Augustinian tradition. The “reformation” of Martin Luther was in many ways a return to the anti rational views of Augustine. While many Catholic intellectuals accepted natural law theories based on man’s reason, the same was not as true for Protestant theologians.

Fundamentalist Christians, rooted in Protestant thinking, have largely abandoned reason. They have, in a real sense, reverted to the old Jewish concept that did not acknowledge God’s law as being revealed in nature, but in scripture. They are the heirs of Augustine not Aquinas. Today’s conservative movement is, to a large extent, dominated by Protestant fundamentalists with a yearning to return to the Old Testament age and Buckley-like Catholics who look fondly on the world of Augustine.

John Dickinson, a founding father, said that rights are part of human nature by the “decrees of Providence.” He was saying that the “laws of our nature” are the origin of our rights. This is a typical appeal to natural law. It is an appeal to a moral code that rests on the fact that man has a specific nature. Jefferson used the same argument and yet no one can claim, without totally ignoring all the facts of history, that Jefferson supported a Christian foundation for the American Constitution. The liberal-minded Deists believed that God created man and that man had a specific nature that required the recognition of specific rights. Those rights were rooted in the “laws of our nature.” The discovery of those rights was not through revelation but “founded on the immutable maxims of reason and justice.”

When the Founders referred to a God they did not mean the God of the Bible. And when they invoked the “laws of God” then did not mean the moral code of the Bible, but the laws of nature. To them the “law of gravity” would be a law of God. This is precisely what George Mason meant when he wrote the Virginia Bill of Rights. Echoing Cicero, Mason said: “The laws of nature are the laws of God, whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to Him from whose punishments they cannot protect us. All human constitutions which contradict His laws, we are in conscience bound to disobey.” Steeped as the Founders were in Enlightenment natural law theory, Mason’s statement is fully understandable. The Founders held that individuals had rights by “nature.” Because they are human they hold rights and all humans, being equally human, hold equal rights. From this they deduced that governments “are instituted amongst men” to protect these natural rights. And any government that denies or infringes on such rights is invalid. Mason’s Bill of Rights does not promote any doctrine that most deists and Enlightenment philosophers would find troubling. And note that Mason makes no reference to Jesus Christ. or to the God of the Bible.